Citation Nr: 0807873
Decision Date: 03/07/08 Archive Date: 03/17/08
DOCKET NO. 06-10 983 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for an acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1960 to March
1961.
This matter comes before the Board of Veterans' Appeals
(Board) from an April 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO) that reopened the
veteran's claim for service connection for an acquired
psychiatric disorder, but then denied the claim on the
merits.
FINDINGS OF FACT
1. The claim for service connection for an acquired
psychiatric disorder, to include schizophrenia, depression,
and anxiety (previously evaluated as schizo-affective
disorder and schizoid personality), was denied in a prior
April 1990 RO
decision. The veteran did not appeal that decision.
2. Evidence received since the last final decision in April
1990 is cumulative or redundant and does not raise a
reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The April 1990 RO decision that denied service connection
for an acquired psychiatric disorder, to include
schizophrenia, depression, and anxiety (previously evaluated
as schizo-affective disorder and schizoid personality), is
final.
38 U.S.C.A. § 7104 (West 2007); 38 C.F.R. §§ 3.104(a),
3.160(d), 20.302, 20.1103 (2007).
2. New and material evidence has not been submitted to
reopen a claim for service connection for an acquired
psychiatric disorder, to include schizophrenia, depression,
and anxiety (previously evaluated as schizo-affective
disorder and schizoid personality). 38 U.S.C.A. §§ 5108,
7104 (West 2007); 38 C.F.R. § 3.156 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
New and Material Evidence
In an April 1965 rating decision, the RO denied the veteran's
claim for service connection for an acquired psychiatric
disorder. The RO declined to reopen the claim in December
1971 and again in April 1990. More recently, the RO in an
April 2005 rating decision reopened the claim but then denied
it on the merits. However, while the RO found that new and
material evidence had been submitted to reopen the veteran's
claim for service connection for an acquired psychiatric
disorder, the Board must still consider the question of
whether new and material evidence has been received because
it goes to the Board's jurisdiction to reach the underlying
claim and adjudicate the claim de novo. Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d
1380 (Fed. Cir. 1996).
In the decision dated in April 1990, the RO denied the
veteran's application to reopen his claim for service
connection for an acquired psychiatric disorder. The veteran
did not appeal this decision. A finally adjudicated claim is
an application which has been allowed or disallowed by the
agency of original jurisdiction, the action having become
final by the expiration of one year after the date of notice
of an award or disallowance, or by denial on appellate
review, whichever is the earlier. 38 U.S.C.A. § 7104 (West
2007); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2007). Thus,
the April 1990 decision became final because the appellant
did not file a timely appeal.
The claim for entitlement to service connection for an
acquired psychiatric disorder may be reopened if new and
material evidence is submitted. Manio v. Derwinski, 1 Vet.
App. 140 (1991). The veteran filed this application to
reopen his claim in December 2004. Under the applicable
provisions, new evidence means existing evidence not
previously submitted to agency decision makers. Material
evidence means existing evidence that, by itself or when
considered with the previous evidence of record, relates to
an unestablished fact necessary to substantiate the claim.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a) (2007). In determining whether
evidence is new and material, the credibility of the new
evidence is to be presumed. Justus v. Principi, 3 Vet. App.
510 (1992).
The evidence submitted to VA at the time of the prior final
denial consisted of the veteran's service medical records,
post-service VA and private medical records, and statements
from the veteran's mother and veteran himself. VA denied the
claim because the evidence did not show that the veteran's
diagnosed psychiatric disorder was incurred in or aggravated
by his military service.
The veteran applied to reopen his claim for service
connection for an acquired psychiatric disorder in December
2004. The Board finds that the evidence received since the
last final decision is cumulative of other evidence of record
and does not raise a reasonable possibility of substantiating
the veteran's claim.
In support of his application to reopen his claim for service
connection, the veteran submitted service medical records
dated from May 1960 to March 1961. These records reveal that
on examination prior to his entry into service, the veteran
was clinically evaluated to have a psychiatric abnormality.
However, no personality deviation was specified. Service
records dated in February 1961 indicate the veteran was
admitted for psychiatric consultation and treatment after
threatening to do bodily harm to himself if he was forced to
return to sea. He was subsequently diagnosed with having a
schizoid personality disorder and discharged from service by
reason of unsuitability in March 1961.
Additionally, the veteran has submitted post-service records
from the South Carolina State Hospital, where he was
diagnosed with a psychotic disorder (schizophrenic reaction,
chronic, undifferentiated type) and treated on an inpatient
basis from September 1965 until May 1966.
Other newly submitted evidence includes a February 1988
treatment report from the Watauga Mental Health Center, which
indicates that the veteran's first hospitalization for
psychotic behavior occurred in 1965 when he was diagnosed
with a schizophreniform disorder of chronic, undifferentiated
type. The examining psychiatrist at the Watauga facility
noted that the veteran had been hospitalized on several other
occasions for symptoms of a psychotic disorder, including
delusions and auditory hallucinations. However, the
psychiatrist did not relate the veteran's psychotic disorder
to his period of service.
Other newly submitted evidence includes VA records dated from
January 1995 to January 2005, which reflect that the veteran
had been treated for many years for symptoms of schizophrenia
and had responded positively to medication and to group and
individual therapy.
Finally, the new evidence includes the report of a May 2006
consultation with a VA psychiatrist. In the course of that
consultation, the veteran told the VA psychiatrist that he
had been discharged from the Navy in 1961 for depression and
that this diagnosis that was later changed to a schizoid
disorder. The veteran added that he had since been treated
for chronic mental illness. He further opined that his
military service, in particular his disappointment in the
behavior of other seamen and the lack of respect he received
from his superiors, had worsened his mental illness. The VA
psychiatrist's diagnostic impression was schizoaffective
disorder. However, the psychiatrist offered no clinical
opinion as to the causation, etiology, or aggravation of the
disorder.
The Board finds that no new and material evidence has been
submitted with regard to the claim for service connection for
an acquired psychiatric disorder. First, the service medical
records that the veteran submitted do not constitute new
evidence in that these records were previously considered by
the RO. Thus, they are not new evidence. In the initial
April 1965 decision denying the veteran's service connection
claim, the RO explicitly referred to the veteran's service
enlistment examination showing his clinical evaluation of a
psychiatric abnormality, as well as his subsequent treatment
for suicidal ideation and the diagnosis of a schizoid
personality disorder which precipitated his discharge from
service. The veteran did not appeal that denial of his
claim, and that decision therefore became final.
In contrast with the veteran's service medical records, his
recently submitted VA records and private records are new in
the sense that they were not previously considered by RO
decision makers. However, they are not material. While
these records demonstrate that the veteran was diagnosed and
treated for a psychiatric disorder after leaving service,
they do not supply a nexus between his psychiatric disability
and his service, nor do they demonstrate that a psychosis
manifested to a compensable degree within one year following
his separation from service. None of the VA or private
medical providers that have treated the veteran for
schizophrenia has related his illness to his period of active
service. Moreover, while the veteran himself reported to the
VA psychiatrist in May 2006 that he believed his mental
illness had worsened while he was in Navy, this statement
alone does not qualify as new and material evidence as it is
merely cumulative of the veteran's past contentions that his
psychiatric disorder is related to service. Accordingly, the
additional treatment records submitted by the veteran do not
establish a fact necessary to substantiate the veteran's
claim, and the claim for service connection for an acquired
psychiatric disorder cannot be reopened on the basis of such
evidence. 38 C.F.R. § 3.156(a).
In sum, although the veteran has submitted new evidence that
was not before the RO in April 1990, that new evidence is not
material to the claim and does not warrant reopening of the
previously denied claim. In light of the evidence and based
on this analysis, it is the determination of the Board that
new and material evidence has not been submitted with regard
to the claim for service connection for an acquired
psychiatric disorder since the RO's last final rating
decision in April 1990 because no competent evidence has been
submitted relating any current mental disorder to the
veteran's service, nor has any evidence been submitted
showing that a psychosis manifested to a compensable degree
within one year following the veteran's separation from
service, or showing that any preexisting psychiatric disorder
was aggravated during his service. Thus, the claim for
service connection for an acquired psychiatric disorder is
not reopened and the benefits sought on appeal remain denied.
Duties to Notify and Assist the Appellant
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159
(2007). The notice must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got pertaining
to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112
(2004).
Here, the RO sent correspondence in January 2005, a rating
decision in April 2005 and a statement of the case in January
2006. These documents discussed specific evidence, the
particular legal requirements applicable to the claim, the
evidence considered, the pertinent laws and regulations, and
the reasons for the decisions. VA made all efforts to notify
and to assist the appellant with regard to the evidence
obtained, the evidence needed, the responsibilities of the
parties in obtaining the evidence, and the general notice of
the need for any evidence in the appellant's possession. The
Board finds that any defect with regard to the timing or
content of the notice to the appellant is harmless because of
the thorough and informative notices provided throughout the
adjudication and because the appellant had a meaningful
opportunity to participate effectively in the processing of
the claim with an adjudication of the claim by the RO
subsequent to receipt of the required notice. There has been
no prejudice to the appellant, and any defect in the timing
or content of the notices has not affected the fairness of
the adjudication. See Mayfield v. Nicholson, 19 Vet. App.
103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006) (specifically declining to address harmless error
doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473
(2006). Thus, VA has satisfied its duty to notify the
appellant and had satisfied that duty prior to the final
adjudication in the July 2006 supplemental statement of the
case.
In addition, all relevant, identified, and available evidence
has been obtained, and VA has notified the appellant of any
evidence that could not be obtained. The appellant has not
referred to any additional, unobtained, relevant, available
evidence. VA has also obtained a medical examination in
relation to this claim. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
ORDER
The application to reopen the claim for service connection
for an acquired psychiatric disorder is denied.
____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs